Excerpt: ... impact, of any, of defendants' pending appeal (C097344) of this Court's 09/16/22 order denying the defense motion to set aside Referee Foley's decision. Perfecting an appeal stays proceedings in the trial court which are embraced in or affected by the issue currently up on appeal. (CCP §916(a).) The purpose of the automatic stay provision is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. ...

Excerpt: ...n. Pursuant to CCP §1281.4, once a dispute is referred to contractual arbitration, the case is generally stayed “until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” Since the arbitration is now complete, plaintiff's request to lift the stay is GRANTED. Pursuant to CCP §1286, once a motion to confirm an arbitration award is duly served and filed, “the court shall confirm...

Excerpt: ...ch were previously stayed pending resolution of a related action in bankruptcy court: 1. Motion to expunge lis pendens filed by defendant IRBC2 Properties; 2. Demurrer by: a. Orion Financial and Connie Riggsby (1st – 5 th COAs); b. IRBC2 Properties and Park Tree Investments (1st – 4 th COAs); c. FCI Lender Services (1st – 7 th COAs); d. Real Time Resolutions (6th COA); and e. 2005 Residential Trust 3‐2 by Wilmington Savings Fund Society (...

Excerpt: ...in the Notice of Motion, and “failure to include this language in the notice may be a basis for the Court to deny the motion.” The notice of motion herein fails to include the required warning regarding tentative rulings, necessitating a DENIAL of the motion without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. Moreover, while there is no substantive opposition to the motion, plaintif...

Excerpt: ...tween co‐defendants Oakdale Irrigation District and the South San Joaquin Irrigation District. Tri‐Dam holds a federal license to operate and maintain a hydroelectric project, which effectively gives it authority to regulate events and activities affecting Lake Tulloch's shoreline. ▪ In 1986, plaintiff acquired ownership of the subject property (APN 098‐022‐003), a 1.2‐acre lot in a newly‐released section of Tract 378 in Lake Tulloc...

Excerpt: ...ffs to secure a quiet title judgment via default; and the other by defendants to set aside the entry of default. Given the unique nature of default proceedings in quiet title actions, a quick primer/reminder is warranted. In a quiet title action, after a defendant defaults, the plaintiff must prove the merits of its claim and the grounds for the relief sought with admissible evidence at a live hearing in open court, and the defendant has a due pr...

Excerpt: ... Based on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs have reached the age of 107. Plaintiffs allege in their Complaint that many of the terms “understood” by the parties did not make it into the Residential Purchase Agreement actually signed by the parties, such as defendants' obligation to secure financing to pay off the promissory note in due course. There are...

Excerpt: ...d complaint on 08/03/21. On 09/20/21, plaintiff requested entry of default and a clerk's judgment based upon the amount in controversy, with no request for prejudgment interest or legal fees. That same day, the clerk entered default and a judgment thereon. Nine months later, on 06/07/22, plaintiff filed its first motion to have that default judgment set aside. The first motion was denied on procedural grounds. The second motion was denied on the ...

Excerpt: ...is another motion to deem a settlement to have been made in good faith, this time by Mozingo Construction. Mozingo would not be dismissed from the action whichever way the Court decides (given Reed's express indemnity cause of action). Unlike the earlier motions and applications, this pending motion is opposed. This state has a strong public policy promoting civil settlements. To this end, parties who settle disputes in good faith are immunized f...

Excerpt: ...at (1) the complaint states facts sufficient to constitute a viable cause of action against the defendant and (2) the answer does not state facts sufficient to constitute a defense to that cause of action. (CCP §438(c); see Templo v. State of California (2018) 24 Cal.App.5th 730, 735; Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321.) The grounds for the motion must appear on face of pleadings (the complaint and the answer), or from facts ...

Excerpt: ...sed on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs have reached the age of 107. Plaintiffs allege in their Complaint that many of the terms “understood” by the parties did not make it into the Residential Purchase Agreement actually signed by the parties, such as defendants' obligation to secure financing to pay off the promissory note in due course. There are al...

Excerpt: ...tute permitting this claim to be made, on the ground that it constitutes an unauthorized gift of public funds. Subsumed within the same argument is the related contention that Legislative revival of the cause of action for limitations purposes does not retroactively forgive plaintiff's failure to timely file a government tort claim. The demurrer and motion to strike require for success what could be described as a trial court going rouge, for no ...

Excerpt: ...tute permitting this claim to be made, on the ground that it constitutes an unauthorized gift of public funds. Subsumed within the same argument is the related contention that Legislative revival of the cause of action for limitations purposes does not retroactively forgive plaintiff's failure to timely file a government tort claim. The demurrer and motion to strike require for success what could be described as a trial court going rouge, for no ...

Excerpt: ... dissolution of long‐term (60 yr) marriage. RFO re spousal support and property control were denied, but Court ordered David to give Carolyn equalizing payments of $1,200/month. Carolyn died before any ruling on support or community property. Dismissed. 20EA44667 04/09/20 David's petition for protection (EARO) from son‐ in‐law Rodd. Court granted 3 yr RO w/stay away. RO terminated early due to David's passing. 20DV44888 08/24/20 Carolyn's p...

Excerpt: ...l Relief Act. Plaintiff objects. Pursuant to 50 USC §3932, any civil litigant currently serving in the military is entitled to a stay of the action “for a period of not less than 90 days” upon a showing (1) that the servicemember's “duty requirements materially affect the servicemember's ability to appear,” and (2) that “military leave is not authorized for the servicemember at the time.” The first element can be established by “a ...

Excerpt: ...relation to the earlier ruling on demurrer (entered 07/22/22), the right to challenge assignments set forth in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, was limited to post‐foreclosure, and only for pre‐foreclosure assignments void ab initio. (See also Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279.) Since the operative pleading was deficient, and the related Notice of Lis pendens defective, the previous clou...

Excerpt: ...without resort to judicial intervention, and in fact brokered a settlement agreement regarding the second (breach of oral contract) cause of action (though issues with that settlement apparently persist). There is apparently an agreement to buy out or sell the property, which is presently alleged to be under consensual forbearance from a nonjudicial foreclosure sale. Before the Court this day is the specially‐set hearing on plaintiff's applicat...

Excerpt: ...sed on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs have reached the age of 107. Plaintiffs allege in their Complaint that many of the terms “understood” by the parties did not make it into the Residential Purchase Agreement actually signed by the parties, such as defendants' obligation to secure financing to pay off the promissory note in due course. There are al...

Excerpt: ...eflected in the various legal proceedings between them. (See 20CH45068, 21UD13373, 21UD13416, and 21CH45278.) In this seemingly straightforward civil action, plaintiff alleges thirteen (13) causes of action, ranging from breach of contract to invasion of privacy and assault. Before the Court is plaintiff's motion for reconsideration of this Court's ruling denying plaintiff's motion for judgment on defendant's unverified answer, pursuant to CCP §...

Excerpt: ...her barriers. The stated goal was to keep plaintiff and her guests/workers off defendant's property. Boundary line disputes are all‐too‐common in Calaveras County, often dating back to the railroads' abandonment of rights‐of‐way, outdated mining claims, and even Spanish land grants. Before the Court is plaintiff's application for a preliminary injunction barring defendant from – among other things – interfering with her historical use...

Excerpt: .../22/22), the right to challenge assignments set forth in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, was limited to those assignments which were void ab initio, not those which were merely voidable. (See also Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279.) Since the operative pleading was deficient, and the related Notice of Lis pendens therefore defective, the previous cloud was ordered expunged. Plaintiff has si...

Excerpt: ...seeks an order “vacating” that decision, while plaintiff seeks an order confirming the decision. Although the parties (and at times, this Court) have liberally referred to the reference as an “arbitration,” it was in actuality a consensual reference per CCP §638 et seq. References of this nature are not subject to trial court review for confirmation, correction or vacation as would an arbitration award. The referee's decision must be ent...

Excerpt: ...t and a clerk's judgment based upon the amount in controversy, with no request for prejudgment interest or legal fees. That same day, the clerk entered default and a judgment thereon. Nine months later, on 06/07/22, plaintiff filed a motion to have that default judgment set aside. That motion was summarily denied pursuant to Local Rule 3.3.7. Plaintiff has now renewed the same motion. There is no memorandum of points and authorities accompanying ...

Excerpt: ...d that the initially‐proffered class representative (Lorraine Larson) was not sufficiently typical to faithfully represent the classes because: 1. She had a pre‐existing, and unrelated, adversarial relationship with the defendant, having lost her job under a discipline cloud; 2. She had an office with a door, and could eat at her workstation, removing her entirely from the concern regarding travel time tardiness; 3. She had a settlement agree...

Excerpt: ...“Doe” placeholders from 10 to 20. There is no opposition filed. According to the proof of service, notice of the motion was timely provided to defense counsel. According to plaintiff's counsel, defense counsel declined to stipulate to the request for leave. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP §473(a)(1).) Pursuant to CRC 3.1324, the moving party mu...